This month’s World Menopause Month raises awareness of what is, still, a relatively taboo subject, especially in the workplace. One of the aims of the global campaign is to encourage discussion of the health issues which can be caused by the menopause, perimenopause (the transition into menopause) and post-menopause, as well as the support options available. In the UK campaigners are seeking exemption from NHS prescription charges for HRT, the most common support and treatment offered for those suffering symptoms.
The campaign also serves as a helpful reminder to employers that, if they know, or should have reasonably known, that an employee or worker is going through the menopause, they may be at risk of the employee alleging discrimination on the grounds of sex, age or disability as well as unfair dismissal if employment is terminated. The right not to suffer discrimination applies to a wider group than just employees and will include some self employed workers but unfair dismissal claims can be brought only by employees.
Menopause is defined as the end of menstruation and the average age for this in the UK is 52 but can be much earlier. Symptoms typically arise in a period of up to 10 years prior to menopause and may include insomnia, hot flushes, lack of ability to concentrate or focus, low energy, memory loss which may impact performance. Another common symptom is very heavy bleeding which requires easy access to toilet facilities. Not all women will suffer severe or problematic symptoms.
If a person is treated less favourably or put at a disadvantage at work because of their menopause symptoms, a discrimination claim may arise under the Equality Act if the employee can show that the discrimination is on grounds of a protected characteristic, such as age, disability, or sex. Unlike pregnancy, the menopause is not a specific protected characteristic under the Equality Act 2010, though there have been calls to put it on the same standing as pregnancy. The chair of the Women and Equalities Committee has announced that changes to equality legislation to protect women going through menopause ‘should not be ruled out’ and has launched an inquiry into whether menopause should be an additional protected characteristic under the Equality Act 2010. Currently, for menopause symptoms to constitute a disability, a person must suffer physical impairment which has a substantial and long-term adverse effect on their ability to carry out daily activities – a high threshold that not every person with menopause symptoms will meet. Cases may also be brought on the basis of age and sex discrimination, such as the case of A v. Bonmarche Ltd (2019) in which a woman was subjected to bullying, harassment and discrimination in the workplace. The claimant was demeaned and humiliated by her manager who called her a ‘dinosaur’, refused to adjust the heating in the shop when she was suffering symptoms, and criticised her ‘for failing to staple together two pieces of paper’, directly relating the latter incident to her menopause. She was successful in her claims of age and sex discrimination against her employer and was awarded £28,000.
The tribunal case of Davies v Scottish Courts and Tribunal Service (2017) concerned a woman suffering from perimenopausal symptoms including anaemia, heavy bleeding and light headedness, feeling emotional as well as lack of concentration, who successfully claimed for unfair dismissal and disability discrimination. The claimant, who was a Scottish Court staff member with 20 years’ unblemished service, became anxious and confused on re-entering the court room where she worked, when she found the jug of water on her table had been drunk. She told her employer that she thought the water contained her cystitis medication so, when she noticed two members of the public gallery drinking, she became distressed and told them they may have ingested it. The investigation that followed revealed that the jug definitely did not contain the claimant’s sachet of medication. The employer took the view that the claimant must have been aware of this and concluded that she had lied and ‘showed no remorse for her actions’. The employer knew of her perimenopausal symptoms and had made some adjustments to accommodate her needs. She was dismissed on the basis of gross misconduct involving dishonesty, a breach of trust and a breach of the employer’s core values. The Employment Tribunal held that the claimant was suffering from a disability and that she had been unfairly dismissed due to a flawed investigation and the employer did not have reasonable grounds in concluding that she was guilty of gross misconduct. The Tribunal also held that the claimant’s perimenopausal symptoms had caused forgetfulness and her dismissal was because of something arising in consequence of her disability. The claimant therefore succeeded in her claims against her employer for unfair dismissal and discrimination arising from disability and was awarded reinstatement, loss of earnings and £5000 injury to feelings.
Ten menopause-related cases have already been brought this year according to The Guardian, and the campaign group Menopause Experts describe an increase in menopause-related tribunal claims over the past few years (five cases in 2018, six in 2019, and 16 in 2020). Some commentators have linked this trend to the growing number of women in the workplace. The Guardian suggests that ‘the rise in cases shows women are increasingly feeling empowered to challenge employers who do not understand the impact the menopause can have and offer them support’. Women’s representation in the workforce has increased steadily over recent years and ONS statistics show women are the main drivers of the increase in the employment rate over the last five years, with a record high of 72.3% of women of working age in the UK in employment, in 2020. Society is aging too, meaning people will be staying in work for longer. A third of all workers are now aged 50 or over and it is estimated by the World Health Organisation that, between 2015 and 2050, the proportion of the world's population over 60 years will nearly double, from 12% to 22%.
Employers may feel they have a difficult path to tread, in both supporting and understanding problems an employee may face by reference to menopause but also avoiding making negative assumptions about the performance of a cohort of female employees and candidates. Increased openness and awareness so that necessary conversations can happen enabling problems and misunderstandings to be avoided, is surely the way forward.